Sudanese President Omar Al Bashir has once again avoided arrest due to the failure of a State Party to the Rome Statute - this time South Africa - to cooperate with the International Criminal Court (ICC). The ICC has issued two arrest warrants against him (in 2009 and 2010) for five counts of crimes against humanity, two counts of war crimes, and three counts of genocide in Darfur. However, for the past six years Al Bashir has been able to defy the ICC both in Sudan and abroad - including in his visits to ICC States Parties Chad, Kenya, Nigeria, Djibouti, Malawi, and the DRC. Now he can add South Africa to this list.

On 13 June 2015, in anticipation of Al Bashir’s travel to South Africa to attend the 25th African Union Summit, the ICC Pre-Trial Chamber II issued its decision following the Prosecutor’s request for an order further clarifying that the Republic of South Africa is under the obligation to immediately arrest and surrender Omar Al Bashir. The Chamber held that it was unnecessary to further clarify that South Africa is obliged to arrest Al Bashir and surrender him to the Court given that (para. 9):

... the Republic of South Africa is already aware of its obligation under the Rome Statute to immediately arrest Omar Al-Bashir and surrender him to the Court, as it is aware of the Court’s explicit position [...] that the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State have been implicitly waived by the Security Council of the United Nations by resolution 1593(2005) referring the situation in Darfur, Sudan to the Prosecutor of the Court, and that the Republic of South Africa cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary.

Nevertheless, South African authorities allowed Al Bashir to enter the country and did not prevent his departure on June 15. In doing so, they also ignored an interim order issued on June 14 by the High Court of Pretoria that prohibited Al Bashir’s departure until further order. On June 15, the High Court ordered the authorities “to take all reasonable steps to prepare to arrest President Bashir ... and detain him, pending a formal request for his surrender from the International Criminal Court” (text included here). However, at the time this order was handed down Al Bashir had already taken off to Sudan, as the High Court soon found out.

The High Court did not take this matter lightly in its subsequent judgment of 24 June 2015. It slammed the responsible government officials for the “clear violation of the order” (para. 9) and held that the argument put forward to the effect that the duty to cooperate with the ICC had been suspended by the immunity granted to Al Bashir was “ill-advised and ill-founded” (para. 31) and “misguided” (para. 32). Having found that the responsible officials had acted in breach of the South African Constitution, the Implementation of the Rome Statute of the International Criminal Court Act, and the Rome Statute, the High Court invited the National Prosecuting Authority “to consider whether criminal proceedings are appropriate” (para. 39).

While several senior officials could now face possible criminal charges for their involvement in Al Bashir’s departure, it appears (see the tweets of 25 June 2015) that the government will “review” whether it will remain a Party to the Rome Statute and “may consider withdrawing from the ICC, once all remedies have been exhausted”. These prior remedies include entering into “formal talks with the ICC regarding certain articles of the Rome Statute”, proposing amendments to the Assembly of States Parties, and possibly bringing the matter before the International Court of Justice “given the complexity of the legal concerns”.

Meanwhile, the Pre-Trial Chamber might proceed to issue a decision on the failure of the Government of South Africa to cooperate with the Court. ICC States Parties have an obligation to cooperate with the Court in the execution of its arrest warrants. Article 86 of the Rome Statute sets out a general obligation to cooperate as follows:

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

The Court has the authority to make requests to States Parties for cooperation (Article 87(1)(a)). Moreover, on the surrender of persons to the ICC, Article 89(1) specifically provides:

The Court may transmit a request for the arrest and surrender of a person [...] to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

This cooperation is essential to the work of the Court, as it cannot fulfil its mandate without it. Cases of non-cooperation are therefore very harmful. If a State Party fails to cooperate, Article 87(7) provides:

Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

The ICC has made several findings of non-cooperation in relation to the failure of State Parties to cooperate in the arrest of Al Bashir. On 12 December 2011 (w. corrigendum of 13 December 2011), the Pre-Trial Chamber I decided that Malawi had failed to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Al Bashir during his visit in October 2011. Similarly, on 13 December 2011, the Chamber decided that Chad had failed to cooperate with the Court in the arrest and surrender of Al Bashir during his visit in August 2011. A further decision on another instance of non-cooperation by Chad was issued on 26 March 2013. Finally, on 9 April 2014, the Pre-Trial Chamber II found that the DRC failed to cooperate by not arresting and surrendering Al Bashir to the Court during his visit to the DRC in February 2014.

Moreover, although Sudan is not a Party to the Rome Statute, Sudan is under an obligation to cooperate with the Court pursuant to Security Council Resolution 1593 of 31 March 2005. In this resolution, the Council referred the situation in Darfur to the ICC Prosecutor (OP1) and decided that the government of Sudan “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor” (OP2).

Since this cooperation has not been forthcoming, on 9 March 2015, the Pre-Trial Chamber II issued a non-compliance decision against Sudan for its refusals to cooperate with the Court on the case against Al Bashir. In dismissing the Sudanese claim that cooperation with the Court is not required since Sudan is not a party to the Rome Statute, the Chamber held (para. 13):

... indeed only States Parties to the Statute are under an obligation to cooperate with the Court. Given that the Statute is an international treaty governed by the rules set out under the Vienna Convention on the Law of Treaties, it is only with the State’s consent that the Statute can impose obligations on a non-State Party. Nevertheless, this principle may be altered by the SC which may, by means of a resolution adopted under Chapter VII of the UN Charter, create an obligation to cooperate with the Court on those UN Member States which are not parties to the Statute. In such a case, the obligation to cooperate stems directly from the UN Charter.

Applied to the case at hand, the Chamber considered (para. 15):

The SC adopted resolution 1593(2005) in which it was decided that the “Government of Sudan […] shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution”. The legal effect of this resolution is twofold. First, Part 9 of the Statute and the relevant Rules governing State Party cooperation become applicable vis-à-vis Sudan. Second, Sudan is expected, consequently, to provide the necessary cooperation envisaged in said resolution including the implementation of the 2009 and 2010 Requests calling for the arrest and surrender of Omar Al Bashir in accordance with the Court’s cooperation regime set out in Part 9 and its national laws. Therefore, should Sudan have faced any legal impediment to comply with these requests, the Sudanese authorities should have consulted or notified the Court in accordance with article 97 of the Statute and rule 195 of the Rules of the existence of a problem related to the execution of the Court’s requests.

The Chamber accordingly concluded (para. 16) “that Sudan not only disregarded the 2009 and 2010 Requests related to its obligation to cooperate in the arrest and surrender of Omar Al Bashir, pursuant to articles 86 and 89 of the Statute, but also SC Resolution 1593(2005).”

However, the Court's strong insistence on the cooperation obligations as well as its referrals of the cases of non-cooperation to the Assembly of States Parties (ASP) and the Security Council have thus far had limited effect. In fact, the Court faces a major challenge in the strong opposition of the African Union (AU).

In response to the first arrest warrant for Al Bashir in 2009, the AU (having unsuccessfully called on the Security Council to defer the ICC proceedings against Al Bashir) decided that its Member States shall not cooperate with the Court in the execution of the arrest warrant.

On 3 July 2009, the Assembly of the AU adopted a decision in which it expressed its “deep concern” at the indictment issued by the ICC Pre-Trial Chamber and decided that:

… the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan (Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court, 3 July 2009, Doc. Assembly/AU/13(XIII), para. 10).

This wording makes it clear that the AU bases its non-cooperation obligation on Article 98 of the Rome Statute. The relevant part of Article 98 can be found in paragraph 1, which provides:

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

However, the Pre-Trial Chamber has specifically rejected the argument that Article 98 negates the duty to cooperate on the Al Bashir arrest warrants. While the Chamber failed to address Article 98 in its 2009 and 2010 arrest warrants, it did consider the matter in several non-cooperation decisions. In its 2011 decision on non-cooperation by Malawi, the Chamber found that “the principle in international law is that immunity of either former or sitting Heads of State can not be invoked to oppose a prosecution by an international court” (para. 36). The Chamber recognized “an inherent tension between articles 27(2) and 98(1) of the Statute and the role immunity plays when the Court seeks cooperation regarding the arrest of a Head of State”, but nevertheless held that “Malawi, and by extension the African Union, are not entitled to rely on article 98(1) of the Statute to justify refusing to comply with the Cooperation Requests” (para. 37). The Chamber repeated this line of reasoning in its 2011 decision on non-cooperation by Chad (see paras. 13-14).

In addition, in its decision of 9 April 2014 on the failure of the DRC to cooperate, the Pre-Trial Chamber II clarified (adopting a different line of reasoning than its 2011 decisions):

28. In the case sub judice the DRC claims that by issuing the 26 February 2014 Decision the Court placed the DRC in a situation where it was called upon to act inconsistently with its international obligations arising from the decision of the African Union “to respect the immunities that come with [Omar Al Bashir’s] position of Head of State”.

29. This position stands to be corrected. The Chamber does not consider that such inconsistency arises in the present case. This is so because by issuing Resolution 1593(2005) the SC decided that the “Government of Sudan […] shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution”. Since immunities attached to Omar Al Bashir are a procedural bar from prosecution before the Court, the cooperation envisaged in said resolution was meant to eliminate any impediment to the proceedings before the Court, including the lifting of immunities. Any other interpretation would render the SC decision requiring that Sudan “cooperate fully” and “provide any necessary assistance to the Court” senseless. Accordingly, the “cooperation of that third State [Sudan] for the waiver of the immunity”, as required under the last sentence of article 98(1) of the Statute, was already ensured by the language used in paragraph 2 of SC Resolution 1593(2005). By virtue of said paragraph, the SC implicitly waived the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State. Consequently, there also exists no impediment at the horizontal level between the DRC and Sudan as regards the execution of the 2009 and 2010 Requests.

30. [...] [I]t follows from the above that the conflicting obligations which the DRC claims exist are not merely between the African Union and the Court. Rather, the conflict actually lies between the decision of the African Union to retain the immunity of Omar Al Bashir and the SC Resolution 1593(2005) which removed such immunity for the purpose of the proceedings before the Court. In this case, the conflict is resolved by virtue of articles 25 and 103 of the UN Charter. According to article 25 of the UN Charter “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the […] Charter”. [...]

31. Further, according to article 103 of the UN Charter “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the […] Charter shall prevail”. Considering that the SC, acting under Chapter VII, has implicitly lifted the immunities of Omar Al Bashir by virtue of Resolution 1593(2005), the DRC cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary.

Regardless of these pronouncements by the ICC, the AU continues to keep in place its non-cooperation obligation based on its (erroneous) application of Article 98 of the Rome Statute. The non-cooperation obligation put in place has been confirmed in subsequent AU resolutions, most recently those issued in February and June of 2015. In these, the AU reaffirms “the need for all Member States to comply with the position of the Assembly of the Union regarding the warrants issued by the ICC against President Bashir” (Decision on the Progress Report of the Commission on the Implementation of Previous Decisions on the ICC, 9 February 2015, Doc. Assembly/AU/18(XXIV), para. 19).

Nevertheless, the position taken by the AU has done little to discourage the Court from its efforts to secure cooperation for the arrest and surrender of Al Bashir. In the latest report of the ICC Prosecutor to the SC pursuant to resolution 1593 (2005), the Prosecutor concluded (para. 34):

South Africa’s failure to arrest Al Bashir earlier this month is a particularly disappointing blow to the fight against impunity. If referrals by the UN Security Council to the Court are to mean anything, UN Member States which are also State Parties to the Rome Statute, must face consequences for serious and inexcusable violations of their duties to cooperate with the Court and to honor the Council’s resolutions.